Automatic unfair dismissalor how to get around the 2 year rule

Employees will usually need to show that they have been employed for 2 years or more in order to bring a claim for unfair dismissal. Unfair dismissal is one of the most common complaints brought before the Employment Tribunal and the so called 2 year rule has had a significant impact on the reduction of claims.

However, if an employee can show that they have been dismissed for one of a number of statutory reasons, the 2 year rule does not apply, and they will be able to bring their unfair dismissal claim whatever their length of service.

It is important to note that the 2 year rule only applies to unfair dismissal complaints, and does not apply, for instance to claims for discrimination, equal pay or unlawful deduction of wages.

The Employment Relations Act states that “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee)…” and there follows a long list of statutory reasons (see below).

Where one of these reasons applies and automatic unfair dismissal is established, procedural unfairness (how disciplinaries were conducted etc.) will no longer be relevant. Furthermore, in normal unfair dismissal cases, the Tribunal needs to consider whether the reason for the dismissal was fair, and then go on to consider whether, in all the circumstances, the dismissal itself was fair. These considerations will not apply in automatic unfair dismissal cases.

There is a very lengthy and complex list of potential automatic unfair dismissal reasons, and we only paraphrase them here. As with all employment legislation, the devil is in the detail, and legal advice needs to be taken. There is, of course, a great potential benefit to this as employers will often make sure a dismissal takes place within the 2 year period.

The potentially automatically unfair dismissal reasons, in paraphrased form, are as follows:

Whistleblowing.

Jury service. Where the request has been made of the employee, or he/she is actually doing it. The employee will be expected to make an application to be excused of the jury service where this might cause substantial injury to his/her employer’s business.

Leave for family reasons.

Pregnancy/child birth of maternity.

Health and safety. These provisions are complex, but are often overlooked. Essentially, the employee will need to have been dismissed because they took steps to avert danger either to themselves or others, or because they reported an issue in a certain defined way.

Sunday work. The protection applies to those who are opted in, and otherwise protected under the Sunday working legislation. For further details of this, look here.

Working time . This would include dismissal for refusing excessive hours.

Trustees of occupational pension schemes performing their duties.

Performing functions as an employee representative.

Assertion of a statutory right. This exception is often misconstrued. In fact, this reason is more limited than may at first appear. The rights essentially concern working time regulations, TUPE transfers, deductions from pay, union activities, unfair dismissal itself, and the right to minimum notice.

Seeking to secure the national minimal wage.

Seeking rights to tax credits.

Seeking rights to flexible working.

Seeking rights to pension auto-enrolment.

Study and training. Find more about studying and training rights here.

Blacklists. This would include any dismissal in reliance on blacklists.

Employee shareholder status. This would include dismissing someone for refusing to become an employee shareholder.